In 2011 I wrote a blog comparing the two primary contract platforms in the A/E/C industry, AIA contract documents and ConsensusDOCS, https://wemberinc.com/consensusdocs-vs-aia-construction-forms/. After a recent training session with a team of legal professionals, I was surprised by their strong support the use of the AIA Contract Documents. The AIA promotes the use of their documents through following statements below, also found on their website: https://www.aiala.com/why-use-aia-documents-2/
- AIA documents are fair. AIA contracts and forms are consensus documents that reflect advice from practicing architects, contractors, engineers as well as owners, surety bond producers, insurers, and attorneys. AIA documents balance the interests of all the parties, so no one interest, including that of the architect, is unfairly represented.
- AIA documents reflect industry practices, not theory. Where practices are inconsistent or no guidelines for practice exist, the AIA documents provide a consensus-based model for practitioners to follow.
- AIA documents reflect changing construction practices and technology. AIA documents are revised regularly to accommodate changes in professional and industry practices, insurance, and technology.
- AIA documents reflect the law. AIA documents are revised and updated to incorporate changes resulting from court interpretations and rulings, legal precedent, and nuances.
- AIA documents are flexible. AIA documents can be easily modified to accommodate individual project demands. Such changes are easily distinguished from the original, printed language.
- AIA documents are easy to interpret. AIA documents use the common meaning of words and phrases. Industry and legal jargon is avoided whenever possible.
I find the definition of many of the terms used in the clauses above could be debated, especially when determining what is “fair” and “flexible.” But one item stands out from the rest: #4, “AIA documents reflect the law.” It is this item that our legal counsel presented as a primary reason for using the AIA contract documents.
- Case law matters. There are volumes upon volumes of books related to how the AIA agreements have been interpreted over the years. This basis of knowledge is what matters in protecting involved parties. Change the agreement language slightly, or insert portions into another document and you are opening up the contract documents for interpretation and debate, even if the information is historically based. The case law does not exist on one-off contracts.
- Legal fees add up. Using AIA agreements can help expedite issue resolution issues due to the years and years of documented interpretation of clauses.
- Standardization helps the negotiations of agreements go more quickly. As most design professionals have confidence in these agreements they can move through negotiations faster. Create a new agreement and money and time is lost on multiple reviews and negotiations of the agreement proposed.
Admittedly, I have been critical of the AIA contract documents over the years and propose modifying language in certain sections. I advise that if you use an AIA Agreement for your design team that you use them for all your agreements (like general contractors) as they are cross-referenced multiple times. Although there are the go-to agreements within the AIA family of contract documents, note there are 180 AIA agreements and forms from which to choose. A valuable resource with information on hundreds of frequently asked questions that can be found here: https://www.aiacontracts.org/support.
Work with your owner’s representative and legal counsel to select the best starting point and include it in your request for proposal so all submitting know what the expectation would be.
~ Paul Wember, Owner’s Representative